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Broad Street Acupuncture, P.C. As Assignee of Luis Nunez, Respondent v. American Transit Insurance Company

New York Supreme and/or Appellate Courts SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 2d, 11th and 13th JUDICIAL DISTRICTS


March 20, 2013

BROAD STREET ACUPUNCTURE, P.C. AS ASSIGNEE OF LUIS NUNEZ, RESPONDENT,
v.
AMERICAN TRANSIT INSURANCE COMPANY, APPELLANT.

Appeal from an order of the Civil Court of the City of New York, Kings County (Robin S. Garson, J.), dated December 8, 2009.

Broad St. Acupuncture, P.C. v American Tr. Ins. Co.

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on March 20, 2013

PRESENT: PESCE, P.J., WESTON and RIOS, JJ

The order granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

ORDERED that the order is modified by providing that the branches of plaintiff's motion seeking summary judgment upon so much of the complaint as sought to recover upon plaintiff's claims for $1,045 and $950 and its claim for $1,140 for services rendered January 28, 2008 through February 26, 2008 are denied, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,045 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $418.99 for services rendered November 12, 2007 through November 29, 2007 upon that claim, and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $950 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $380.90 for services rendered November 30, 2007 though December 20, 2007 upon that claim; as so modified, the order is affirmed, without costs, and the matter is remitted to the Civil Court for all further proceedings with respect to the unpaid portions of those claims and the remaining claim.

In this action by a provider to recover assigned first-party no-fault benefits, the Civil Court granted plaintiff's motion for summary judgment and denied defendant's cross motion for summary judgment dismissing the complaint.

Since defendant raises no issue on appeal with regard to plaintiff's establishment of its prima facie case, we do not pass upon the propriety of the Civil Court's implicit determination with respect thereto (see Insurance Law § 5106 [a]; Mary Immaculate Hosp. v Allstate Ins. Co., 5 AD3d 742 [2004]).

The complaint seeks to recover upon claims in the principal sums of $1,045, $950, $1,140 (for services rendered December 27, 2007 through January 14, 2008) and $1,140 (for services rendered January 28, 2008 through February 26, 2008). A review of the record indicates that, with respect to plaintiff's $1,045 claim, defendant timely (see St. Vincent's Hosp. of Richmond v Government Empls. Ins. Co., 50 AD3d 1123 [2008]; Delta Diagnostic Radiology, P.C. v Chubb Group of Ins., 17 Misc 3d 16 [App Term, 2d & 11th Jud Dists 2007]) paid $418.99 and denied the remaining $626.01, and, with respect to the $950 claim, defendant timely (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123]; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16) paid $380.90 and denied the remaining $569.10. These claims were partially denied on the ground that the amount billed by plaintiff exceeded the fees allowed by the workers' compensation fee schedule. As plaintiff concedes that defendant paid $418.99 and $380.90, respectively, of these claims, the branches of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the paid portion of the claims should be granted. However, as there is an issue of fact as to whether plaintiff is entitled to recover the unpaid portion of these claims, $626.01 and $569.10, respectively, neither party is entitled to summary judgment with respect thereto (see East Coast Acupuncture, P.C. v New York Cent. Mut. Ins. Co., 18 Misc 3d 139[A], 2008 NY Slip Op 50344[U] [App Term, 2d & 11th Jud Dists 2008]).

With regard to the branch of plaintiff's motion seeking summary judgment upon so much of the complaint as seeks to recover upon its $1,140 claim for services rendered December 27, 2007 through January 24, 2008, defendant failed to establish the proper mailing of the independent medical examination (IME) scheduling letters (see St. Vincent's Hosp. of Richmond, 50 AD3d 1123; Delta Diagnostic Radiology, P.C., 17 Misc 3d 16), and that plaintiff's assignor had failed to appear at either of the duly scheduled IMEs (see Stephen Fogel Psychological, P.C. v Progressive Cas. Ins. Co., 35 AD3d 720, 721 [2006]; Excel Radiology Serv., P.C. v Utica Mut. Ins. Co., 31 Misc 3d 138[A], 2011 NY Slip Op 50751[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). In light of the foregoing, defendant failed to raise a triable issue of fact with respect to this claim, and we do not disturb so much of the order as awarded plaintiff summary judgment upon so much of the complaint as sought to recover upon this claim.

With regard to plaintiff's $1,140 claim for services rendered January 28, 2008 through February 26, 2008, the affidavit of defendant's no-fault examiner was sufficient to overcome the presumption that a proper mailing had occurred and to raise a triable issue of fact as to whether defendant had received the claim (see Pomona Med. Diagnostics, P.C. v Travelers Ins. Co., 31 Misc 3d 127[A], 2011 NY Slip Op 50447[U] [App Term, 2d, 11th & 13th Jud Dists 2011]). As a result, neither party is entitled to summary judgment with respect to this claim.

Accordingly, the order is modified by providing that the branches of plaintiff's motion seeking summary judgment upon so much of the complaint as sought to recover upon plaintiff's claims for $1,045 and $950 and its claim for $1,140 for services rendered January 28, 2008 through February 26, 2008 are denied, the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $1,045 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $418.99 for services rendered November 12, 2007 through November 29, 2007 upon that claim, and the branch of defendant's cross motion seeking summary judgment dismissing so much of the complaint as sought to recover upon the claim for $950 is granted to the extent of awarding defendant partial summary judgment dismissing so much of the complaint as sought to recover the sum of $380.90 for services rendered November 30, 2007 though December 20, 2007 upon that claim; as so modified, the order is affirmed and the matter is remitted to the Civil Court for all further proceedings with respect to the unpaid portions of those claims and the remaining claim.

Pesce, P.J., Weston and Rios, JJ., concur. Decision Date: March 20, 2013

20130320

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